92 Decision Citation: BVA 92-05574
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-19 099 ) DATE
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THE ISSUE
Entitlement to an increased rating for callosities of both
feet, currently rated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. A. McDonald, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1943 to
January 1945. This matter came before the Board of
Veterans' Appeals (hereinafter the "Board") on appeal from a
rating decision of the Jackson, Mississippi regional office
(hereinafter the "RO"). A November 1989 rating decision
denied the veteran's claims of entitlement to increased
evaluations for callosities and atrophic rhinitis. The
notice of disagreement to this action was received in
January 1990 and the statement of the case was issued in
February 1990. The veteran's substantive appeal was
received in March 1990. The Board remanded these issues to
the RO for further development in October 1990. By a rating
decision in March 1991, the RO denied entitlement to an
increased evaluation for callosities of both feet. A
supplemental statement of the case was issued in April
1991. A rating decision in April 1991 confirmed and
continued the previous rating decision.
A Board decision in September 1991, again remanded these
issues to the RO for further development. A rating decision
in December 1991 denied entitlement to an increased
evaluation for callosities of both feet, but increased to
50 percent the veteran's atrophic rhinitis. As a full grant
of benefits for rhinitis was allowed by the RO, the only
issue on appeal to the Board is entitlement to an increased
rating for callosities of both feet.
During the course of the appeal, the issue of entitlement to
a total rating for compensation purposes based on individual
unemployability has been raised. That issue was not
addressed by the RO and is referred to the RO for
appropriate consideration.
This appeal was docketed at the Board in January 1992. The
veteran's representative, Disabled American Veterans,
submitted additional written argument that same month, and
the case is now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that the RO committed error in
continuing the 30 percent rating for callosities of both
feet as he contends that this disorder is more disabling
than currently evaluated. He states his feet cause severe
pain and spasm on standing or walking.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the preponderance of the evidence
is against the claim for an increased evaluation for
callosities of both feet.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. Callosities of both feet have not resulted in marked
pronation, extreme tenderness of the plantar surfaces of the
feet, or marked inward displacement and severe spasm of the
tendo achillis on manipulation.
CONCLUSION OF LAW
An evaluation in excess of 30 percent for callosities of
both feet is not warranted. 38 U.S.C. §§ 1155, 5107 (1991);
38 C.F.R. §§ 4.7, and 4.71a, Diagnostic Code 5276 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We note that we have found that the veteran's claim is
"well-grounded" within the meaning of 38 U.S.C. § 5107(a).
That is, we find that he has presented a claim which is
plausible. We are also satisfied that all relevant facts
have been properly developed and no further assistance to
the veteran is required to comply with the duty to assist as
mandated by 38 U.S.C. § 5107(a).
Some of the basic facts are not in dispute. Service
connection is in effect for callosities of both feet. The
service medical records reveal the veteran was treated for
callosities of both feet in 1944 and 1945. His induction
examination revealed his feet were normal. The veteran
filed a claim immediately after discharge indicating he
first had difficulty with his feet and received treatment
overseas in Africa in 1943. This disorder has been noted on
continuous examinations since service discharge. The RO has
assigned a 30 percent disability rating for callosities of
both feet under the provisions of Diagnostic Code 5276 of
the Department of Veterans Affairs (hereinafter the "VA")
Schedule for Rating Disabilities. 38 C.F.R. Part 4.
As noted above, the veteran has complained of callosities of
both feet since service discharge. In 1959, a VA
examination showed extremely thick and hornified calluses
scattered over both feet. The calluses were numerous, and
were tender and sore to pressure. No evidence of
inflammation or infection was found. By rating decision of
August 1959, a 30 percent rating was assigned. In 1964, a
small callosity was found on the plantar surface of the
lateral edge of the right foot, which was painful on
moderate pressure. The calluses on the lateral aspect of
the left foot did not appear to cause pain on pressure; only
those directly on the plantar surface were reportedly
uncomfortable, and then only on digital pressure. There was
no evidence of fissuring or secondary infection. Rating
decision of May 1964 assigned 10 percent. A VA examination
in 1966 found both feet to be damp but the skin was intact
with no fissures or dermal lesion. Flattened arches and
callosities about each heal as well as plantar surfaces of
each foot were shown. Callosities of the heel were tender
on palpation and several small callosities on the lateral
aspect of the plantar surfaces on both feet were reported as
quite tender on palpation. Rating decision of April 1966
assigned a 30 percent rating which has since remained in
effect.
The VA orthopedic examination in February 1991, revealed a
history of painful callosities with improvement. The
veteran had tender callosity weight bearing under the right
fifth metatarsal, a soft corn between the left 3rd and
4th toes, and degenerative and traumatic arthritis of the
lesser toes, especially on the left. However, no skin
changes other than those described and chronic nails were
found. An X-ray of both feet was unremarkable. There was
no swelling.
A 30 percent disability rating under Diagnostic Code 5276
requires that it be shown that the veteran's foot disorder
is severe. Objective evidence of marked deformity, pain on
manipulation and use accentuated, indication of swelling on
use and characteristic callosities must be shown. 38 C.F.R.
§ 4.71a, Diagnostic Code 5276. The above findings, to
include the veteran's report of increased foot pain as
reflected in a February 1989 private doctor's statement,
show that the veteran's bilateral foot disorder is well
encompassed by the 30 percent disability rating assigned.
There has been no showing of a pronounced disorder
manifested by marked pronation, extreme tenderness of the
plantar surfaces of the feet, marked inward displacement,
and severe spasm of the tendo achillis on manipulation which
is the required schedular criteria for a 50 percent
disability rating. Id.
Consideration has also been given to the potential
application of the various provisions of 38 C.F.R. Parts 3
and 4, whether or not they were raised by the veteran, as
required by Schafrath v. Derwinski, U.S. Vet. App. No.
89-114 (November 26, 1991). The evidence discussed above
does not suggest that the veteran's bilateral foot disorder
presents an exceptional or unusual disability picture as to
render impractical the application of the regular schedular
standards, so as to warrant the assignment of an
extraschedular evaluation under 38 C.F.R. § 3.321(b)(1)
(1991). Further, we wish to state that, in reaching the
determination in this case, we have given due consideration
to the application of the benefit of the doubt doctrine and
the provisions of 38 C.F.R. § 4.7. The record, as discussed
above, does not provide an approximate balance of negative
and positive evidence on the merits, and therefore
application of the benefit of the doubt doctrine is not
warranted. Moreover, the objective medical evidence does
not demonstrate that the actual manifestations of the
veteran's service-connected disability more closely
approximate those required for a higher disability
evaluation than they do those currently assigned. Thus, a
favorable determination in this case is not warranted.
ORDER
An increased rating for callosities of both feet, is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
HARRY M. McALLISTER, M.D.
M. SABULSKY
*38 U.S.C. § 7102(a)(2)(A) (1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, §
402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.